Simons v. Canty

• Decision Date: 19 March 1985
• Docket Number: No. 12616,12616
• Citation: 488 A.2d 1267,195 Conn. 524
• Parties: Daniel D. SIMONS et al. v. Mary Bernice CANTY, Town Clerk of Watertown.
• Court: Connecticut Supreme Court

Page 1267

488 A.2d 1267

195 Conn. 524

Daniel D. SIMONS et al. v. Mary Bernice CANTY, Town Clerk of Watertown.

No. 12616.

Supreme Court of Connecticut.

Argued Jan. 10, 1985.

Decided March 19, 1985.

James K. Robertson, Jr., Waterbury, for appellants (plaintiffs).

Steven G. Mednick, New Haven and Franklin G. Pilicy, Watertown, with whom, on the brief, was Keith B. Gallant, New Haven, for appellee (defendant).

Vincent T. McManus, Jr., Wallingford, filed a brief as amicus curiae (town of Wallingford).

Before PETERS, C.J., and ARTHUR H. HEALEY, PARSKEY, SHEA and HADDEN, JJ.

PETERS, Chief Justice.

The dispositive issue on this appeal is whether the Home Rule Act empowers municipalities to provide for the recall of their elected officials. Six residents and registered voters of the town of Watertown brought suit against the defendant town clerk of Watertown, seeking a writ of mandamus to compel the defendant to certify petitions for recall of two members of the Watertown town council in accordance with § 208 of the town charter. ¹ The trial court refused to issue the writ and the plaintiffs appealed. We find no error.

The parties stipulated to the following facts. Section 208 of the Watertown charter provides that a recall election shall be called once 30 percent or more of the electorate sign a recall petition, provided that the signatures are filed with and certified by the town clerk. ² Beginning on August 7, 1984, the plaintiffs circulated petitions for the recall of two members of the Watertown town council. They used a form that had been approved by the defendant and collected more than 3500 signatures of registered Watertown voters. At the time in question, 3192 voters constituted 30 percent of the electorate. On September 26, 1984, and October 5, 1984, the plaintiffs filed their petitions with the defendant for certification. Although the defendant made no objection to the form of the petitions or to the form or number of the signatures, she refused to certify the petitions on the ground that § 208 was invalid.

The plaintiffs raise two interrelated issues on appeal. They contend that the trial court erred: (1) in holding that Watertown lacked the authority to enact a provision for recall of its elected officials and (2) in refusing to issue a writ of mandamus to compel the defendant to certify the petitions.

I

The major premise of the plaintiffs' appeal is that Watertown had the authority to adopt procedures for the recall of municipal officials. This is a question of first impression. Before the adoption of article tenth, § 1 of our constitution, the legislature had by special act authorized five municipalities to exercise the power of recall. ³ Under the terms of article tenth, § 1, ⁴ the legislature can no longer enact special legislation in this area. The only case in which we considered recall of municipal officeholders concerned one of the five municipalities that had been granted the power by special act; see State ex rel. Lewis v. Turney, 97 Conn. 496, 117 A. 499 (1922); and is therefore not relevant to this appeal. The plaintiffs maintain that Watertown's authority to hold recall elections stems from four independent entitlements: article tenth, § 1 of the Connecticut constitution; ⁵ General Statutes § 7-193(a); ⁶ General Statutes § 7-148(c)(7)(H)(xiii); ⁷ and municipalities' inherent power over matters of local concern. ⁸

The sources of municipal authority are well defined. Municipalities, because they are creations of the state, have no inherent legislative authority. See New Haven Commission on Equal Opportunities v. Yale University, 183 Conn. 495, 499, 439 A.2d 404 (1981); Connelly v. Bridgeport, 104 Conn. 238, 252, 132 A. 690 (1926); State ex rel. Bulkeley v. Williams, 68 Conn. 131, 149, 35 A. 24 (1896), aff'd sub nom. Williams v. Eggleston, 170 U.S. 304, 18 S.Ct. 617, 42 L.Ed. 1047 (1898); Webster v. Harwinton, 32 Conn. 131, 138-39 (1864); Littlefield, "Municipal Home Rule--Connecticut's Mature Approach," 37 Conn.B.J. 390, 404-405 (1963); 2 McQuillin, Municipal Corporations (3d Ed.Rev.1979) § 10.11. They can wield only those powers expressly granted to them by the legislature; City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980); Pepin v. Danbury, 171 Conn. 74, 83, 368 A.2d 88 (1976); or necessary to the exercise of an expressly delegated power. Perretta v. New Britain, 185 Conn. 88, 102, 440 A.2d 823 (1981); New Haven Water Co. v. New Haven, 152 Conn. 563, 566, 210 A.2d 449 (1965). The constitutional provision cited by the plaintiffs merely restates the basic rule: "The general assembly shall by general law delegate such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers, organization, and form of government of such political subdivisions." Conn. Const., art. X § 1. In sum, the sole font of municipal authority is legislative delegation in the form of a general statute or a special act adopted prior to the effective date of article tenth.

The rules that determine whether a power has been delegated to a municipality are also well established. "The legislature has been very specific in enumerating those powers it grants to municipalities. See General Statutes Title 7." Buonocore v. Branford, 192 Conn. 399, 403, 471 A.2d 961 (1984). "An enumeration of powers in a statute is uniformly held to forbid the things not enumerated." State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957); State ex rel. Barnard v. Ambrogio, 162 Conn. 491, 498, 294 A.2d 529 (1972). Delegation of authority to municipalities is therefore narrowly construed. See Gregory v. Bridgeport, 41 Conn. 76, 86 (1874). In determining whether a municipality has the authority to adopt a challenged charter provision, "we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment." Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1965).

In light of these governing principles, the plaintiffs' principal argument is that towns are authorized to adopt charter provisions for the recall of local officials because of the express provisions of General Statutes § 7-193(a), which requires all municipalities to maintain some form of an elective legislature. In particular, the plaintiffs point to its provision that "[t]he number of members in any elective legislative body, the terms of office of such members and the method by which they are elected shall be prescribed by the [municipal] charter." The plaintiffs contend that the power to recall members of the town council is included in the power to set the terms of office of municipal legislators.

The plaintiffs' invocation of § 7-193 is unpersuasive. Factually, their argument founders on their admission that one who replaces a recalled official would serve only for the remainder of the ousted official's term. A recall that substitutes one officeholder for another does not alter the underlying term of office and § 7-193 is thus inapplicable on its face. Further, the express purpose of § 7-193 is to prescribe the basic structural division of municipal government into legislature, executive officer, and subordinate agencies and officials. ⁹ Charter provisions for recall do not fit naturally into a listing of features that are "basic and essential for all municipalities." Canavan v. Messina, 31 Conn.Sup. 447, 450, 334 A.2d 237 (1973).

The plaintiffs' alternate claim is that the power to recall municipal officials is necessary to carrying out the duty delegated to localities by General Statutes § 7-148(c)(7)(H)(xiii) to "protect or promote the ... good government ... of the municipality and its inhabitants." The short answer to this claim is that whether it is necessary to good government to be able to recall officeholders is a legislative question that has thus far been answered in the negative. The General Assembly has enacted express legislation when delegating to local governments various powers far less significant than that of recalling elected officials. See, e.g., General Statutes § 7-148(c)(7)(F)(iii) (prohibition of nighttime loitering by minors); General Statutes § 7-148(c)(7)(H)(iii) (regulation of auctions and garage and tag sales). A fortiori, if the legislature had intended to confer the recall power on municipalities it would have done so explicitly. Cf. City Council v. Hall, supra, 180 Conn. 249-50, 429 A.2d 481. We have consistently rejected claims that municipalities may exercise important functions based solely on their power to promote good government; see Buonocore v. Branford, supra; City Council v. Hall, supra; and we decline to imply recall as a necessary, though unstated, municipal power. Section 208 of the Watertown charter is therefore invalid. ¹⁰

Our finding that municipalities lack the authority to enact recall provisions is in accord with the most recent legislative activity in this area. In 1974 and again in 1978, the General Assembly was advised by its Office of Legislative Research that the Home Rule Act did not authorize municipal recall elections. See O.L.R. Reports 74-139 and 78-112. The 1978 report was drawn up to identify areas where revision of the act might be desirable. See remarks of Representative Joseph J. Farricielli, 23 H.R.Proc., Pt. 15, 1980 Sess., p. 4552. A bill was then drafted that initially included a section conferring on municipalities the power "to provide, within the charter, for a method to recall or remove, by popular vote, municipal elected officials." Raised Committee Bill No. 5674, 1980 Sess., § 126(51). This section was, however, deleted before the bill reached the floor of the House. See Substitute House Bill No. 5674, 1980 Sess., § 115. ¹¹ The question of empowering municipalities to recall local officials has thus been recently considered by the legislature. The legislature's policy decision to reject local...